EXHIBIT 4.6
TERMINATION AGREEMENT
This Termination Agreement (this "Agreement"), dated as of April 6,
2004 (this "Agreement"), is entered into by and among Westport Resources
Corporation, a Nevada corporation (the "Company"), Westport Energy LLC, a
Delaware limited liability company ("WELLC"), EQT Investments, LLC, a Delaware
limited liability company and successor-in-interest to ERI Investments, Inc.
("EQT"), Medicor Foundation, a Liechtenstein foundation formed pursuant to the
Liechtenstein Persons and Companies Act ("Medicor"), and the persons and
entities named on Exhibit A attached hereto (collectively, the "Belfer Group").
WELLC, EQT, Medicor and each member of the Belfer Group may be referred to
herein individually as a "Stockholder Party" and collectively as the
"Stockholder Parties".
PRELIMINARY STATEMENTS
The Company and the Stockholder Parties are parties to (i) that certain
Termination and Voting Agreement (the "Old Voting Agreement") and (ii) that
certain Registration Rights Agreement (the "Old Registration Rights Agreement"),
each dated as of October 1, 2003 and attached as Exhibit B and Exhibit C hereto,
respectively.
▇▇▇▇-▇▇▇▇▇ Corporation, a Delaware corporation ("Parent"), ▇▇▇▇-▇▇▇▇▇
(Nevada) LLC, a Nevada limited liability company and wholly-owned subsidiary of
Parent ("Merger Sub"), and the Company propose to enter into an Agreement and
Plan of Merger, dated as of the date hereof (as it may be amended or
supplemented from time to time, the "Merger Agreement"), pursuant to which, upon
the terms and subject to the conditions thereof, the Company will be merged with
and into Merger Sub, and Merger Sub will be the surviving entity (the "Merger").
In connection with the Merger Agreement and the transactions
contemplated thereby, Parent, certain of the Stockholder Parties and one or more
other individuals are entering into one or more Voting Agreements, each dated as
of the date hereof (as each may be amended or supplemented from time to time,
the "New Voting Agreements"), pursuant to which, upon the terms and subject to
the conditions thereof, each Stockholder Party and each such other individual
agrees, among other things, to vote (or cause to be voted) their respective
shares of the common stock of the Company in favor of the Merger and the
adoption of the Merger Agreement.
In connection with the Merger Agreement and the transactions
contemplated thereby, Parent, EQT, WELLC and Medicor propose to enter into a
Registration Rights Agreement, dated as of the date hereof (as it may be amended
or supplemented from time to time, the "New Registration Rights Agreement"),
pursuant to which, upon the terms and subject to the conditions thereof, Parent
will grant certain registration rights to the other parties thereto with respect
to such parties' respective shares of Parent common stock to be received in
connection with the Merger.
As a condition to its willingness to enter into the Merger Agreement
and the New Registration Rights Agreement, Parent has required that the Company
and each Stockholder Party agree, and such parties are willing to agree, to the
matters set forth herein.
NOW, THEREFORE, in consideration of the foregoing, and of the covenants
and agreements contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound, hereby agree as follows:
STATEMENT OF AGREEMENT
ARTICLE I
TERMINATION OF AGREEMENTS
Section 1.1 Termination of the Old Voting Agreement. Subject to
Section 1.3 hereof, effective as of the Effective Time (as such term is defined
in the Merger Agreement), the Old Voting Agreement shall terminate in its
entirety and shall be of no further force or effect.
Section 1.2 Termination of the Old Registration Rights Agreement.
Subject to Section 1.3 hereof, effective as of the Effective Time (as such term
is defined in the Merger Agreement), the Old Registration Rights Agreement shall
terminate in its entirety and shall be of no further force or effect.
Section 1.3. Effectiveness of this Agreement. In the event the
Merger Agreement is terminated for any reason, this Agreement shall be null and
void and of no further force or effect, and the Old Voting Agreement and the Old
Registration Rights Agreement shall remain in full force and effect in
accordance with their respective terms.
ARTICLE II
MISCELLANEOUS PROVISIONS
Section 2.1 Notices. Any notice required to be given hereunder
shall be sufficient if in writing, and sent by facsimile transmission and by
courier service (with proof of service), hand delivery or certified or
registered mail (return receipt requested and first-class postage prepaid),
addressed as follows:
If to the Belfer Group:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Phone Number: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Phone Number: (▇▇▇) ▇▇▇-▇▇▇▇
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If to the Company:
▇▇▇▇▇▇ ▇. ▇▇▇▇
Chairman and Chief Executive Officer
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Phone Number: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, P.C.
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Phone Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to Medicor:
Medicor Foundation
▇▇▇▇▇▇▇▇▇▇▇ ▇▇
Postfach 130
9495 Triesen
Liechtenstein
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Phone Number: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
And to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Partners
▇▇▇▇▇ Court
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇'▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
Fax Number: ▇▇▇.▇.▇▇▇.▇▇▇▇
Phone Number: ▇▇▇.▇.▇▇▇.▇▇▇▇
If to WELLC:
Westport Energy LLC
c/o Westport Investments Limited
▇▇▇▇▇▇ Manor
▇▇▇▇▇▇ ▇▇▇
P.O. Box N-7776
Nassau, Bahamas
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
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With a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Traurig, LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
And to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Partners
▇▇▇▇▇ Court
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇'▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
Fax Number: ▇▇▇.▇.▇▇▇.▇▇▇▇
Phone Number: ▇▇▇.▇.▇▇▇.▇▇▇▇
If to EQT Investments, LLC:
EQT Investments, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Treasurer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇▇
Vice President, General Counsel and Secretary
Equitable Resources, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
And to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esquire
▇▇▇▇ ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Section 2.2 Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Nevada, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
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Section 2.3 Counterparts. This Agreement may be executed in any
number of counterparts and by different parties in separate counterparts, and
delivered by means of facsimile transmission or otherwise, each of which when so
executed and delivered shall be deemed to be an original and all of which when
taken together shall constitute but one and the same agreement.
Section 2.4 Parties in Interest; Assignment. This Agreement and
all of the provisions hereof shall be binding upon and inure to the benefit of,
and be enforceable by, the parties hereto and their respective heirs,
beneficiaries, executors, successors, representatives and permitted assigns.
This Agreement shall not be assigned by operation of law or otherwise without
the prior written consent of the other parties hereto; provided, that any
Stockholder Party may, by giving notice to the Company, assign its rights and
obligations hereunder in connection with the sale, transfer or assignment of all
but not less than all of the Common Stock it holds to a person (including a
corporation, limited liability company, limited partnership or other entity)
which controls, is controlled by or is under common control with such
Stockholder Party.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Termination
Agreement and caused the same to be duly delivered on their behalf to be
effective as of the date first written above.
WESTPORT RESOURCES CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Chief Executive Officer
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WESTPORT ENERGY LLC
By: WESTPORT INVESTMENTS LIMITED, its
Managing Member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Director
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EQT INVESTMENTS, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President
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MEDICOR FOUNDATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: CEO
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By: /s/ ▇▇▇▇▇ ▇. Johann
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Secretary
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, individually
THE ▇▇▇▇▇▇ ▇. AND ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
FAMILY FOUNDATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Trustee and Donor
BELFER CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
▇▇▇▇▇ HOLDINGS PARTNERSHIP, L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: General Partner
LDB CORP.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 1990 FAMILY TRUST
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Trustee
VANTZ LIMITED PARTNERSHIP
By: VANTZ LLC,
its General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Member
LDB TWO CORP.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
BELFER TWO CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
LIZ PARTNERS, L.P.
By: LIZ ASSOCIATES LLC,
its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Member
EXHIBIT A
THE BELFER GROUP
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
The ▇▇▇▇▇▇ ▇. and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Family Foundation
Belfer Corp.
▇▇▇▇▇ Holdings Partnership, L.P.
LDB Corp.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 1990 Family Trust
Vantz Limited Partnership
LDB Two Corp.
Belfer Two Corp.
Liz Partners, L.P.
EXHIBIT B
TERMINATION AND VOTING AGREEMENT
[Attached]
EXHIBIT C
OLD REGISTRATION RIGHTS AGREEMENT
[Attached]
